By Richard Stobbe

An obituary aggregation site – yes, there is such a thing – was in the business of reposting obituaries, both text and photos, taken from the sites of Canadian funeral homes and newspapers.  This database of obituaries was a way to attract visitors who could then buy flowers and ‘virtual candles’ on the same page as the obituary, to generate profits.

Not surprisingly, someone complained.

Thomson v. Afterlife Network Inc., 2019 FC 545 (CanLII) was a class action lawsuit against the obituary aggregation company, Afterlife, for copyright infringement, based on the unauthorized copying and publication of over a million obituaries. Shortly after the class action lawsuit was launched, the Afterlife site shut itself down.

Class action members expressed that “an obituary they had written for a family member, often accompanied by a photograph, had been posted on Afterlife’s website without their permission. The evidence of many Class Members is that they had written the obituaries in a personal way and that their discovery that the obituaries had been reproduced with the addition of sales of candles and other advertising was an emotional blow to them. In some cases, inconsistent information was added, for example, inaccurate details about the deceased or options to order flowers where the family had specifically discouraged flowers. The Class Members also describe Afterlife’s conduct, in seeking to profit from their bereavement and in conveying to the public that the families were benefiting from sales of virtual candles or other advertising, as reprehensible, outrageous and exploitative.”

The court had no trouble in establishing copyright protection for the obituaries as well as the photos.

The court also quickly concluded that Afterlife has republished this content without the permission of the original authors.

Damages need not be proven where statutory damages are invoked.  Since statutory damages (Section 38.1 of the Copyright Act) allow for not less than $500 and not more than $20,000 per infringement, the court saw that the minimum of $500 multiplied by the estimated two million separate infringements (at least one photo plus a block of text in each of the 1 million copied obituaries), would result in a minimum damage award of around $1 billion.  Seeing this as grossly disproportionate, the court awarded $10 million in statutory damages, and another $10 million in aggravated damages, which can be awarded for compensatory purposes.  Strangely, the court did not award punitive damages for this case of “obituary piracy”, that the court agreed was high-handed, reprehensible and “represents a marked departure from standards of decency”.

Although this case may be noted for its significant statutory damage award, it also deal with a moral rights claim by the original authors of the obituaries. Under Canadian copyright law, “moral rights” protect the integrity of a work and are engaged where the author’s honour or reputation is prejudiced by the distortion or modification of the original work, or by using the work in association with a product, service, cause or institution.

The court struggled to find a moral rights infringement, since it was given evidence of the subjective elements of the infringement (the authors expressed that they were understandably mortified that others would think that they were somehow profiting from bereavement). However, the court noted that there is both a subjective and objective aspect in order to establish infringement of moral rights. The objective element was missing here.

In the end, a $20 million damage award was granted against Afterlife.

Calgary – 07:00 MT